It has been argued that this entry, being inconsistent with article 13 which lays down that all citizens shall have the right to freedom of speech and expression, is out of order. It is argued that the only limitation to this fundamental right is the one laid down in clause (2) of article 13 and the proposed entry not coming under that is out of order. Reliance has been placed in support of this view on a decision of the Supreme Court of the United States in Alice Lee Grosjean V. American Press Company, which laid down that an Act of the Legislature of Louisiana levying a licence tax of 2 per cent of the gross receipts of revenues obtained by newspapers, magazines and periodical publications having a circulation of more than 20,000 copies per week was invalid as violating the Federal Constitution, and abridging the freedom of the press. The question which I have to decide is whether an entry in Schedule VII, List I or for that matter in any of the lists of the nature mentioned above is in order, I am not concerned with the question as to whether a particular legislation based on that entry is ultra vires as violating the rights given in section 13. That will be a matter for courts to decide. The entry proposed only gives the right to the Union Legislature to impose a tax on newspapers including advertisements published therein. Article 13 does not lay down anywhere that newspapers including advertisements published therein shall not be taxed. The entry therefore, appears to be not inconsistent with article 13. Provision for taxation has to be considered independently and on its own merit apart from the question of the fundamental right to speech and expression. Even the decision of the Supreme Court of the United States on which reliance has been placed does not exclude all taxation. It expressly lays down “It is not intended by anything we have, said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the Government. But this is not an ordinary form of tax but one single in kind with a long history of hostile misuse against the freedom of the press”. Further the judgment says—”The tax here involved is bad not because it takes money from the pockets of the appellants. If that were all a wholly different question would be presented. It is bad because in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees”. The particular tax was levied on papers having a circulation of more than 20,000 copies per week. There was a competition between such papers and others having a smaller circulation, and the judges held that this discrimination against newspapers having circulation of more than 20,000 operated as restraint in a double sense. First its effect was to curtail the amount of revenue and second its direct tendency was to restrict circulation. It will be a question in any particular case, if it arises to be decided, whether a particular tax operates as a curtailment of the right of freedom of speech and expression and it cannot be laid down that there can be no tax on newspapers or advertisements published therein. The entry as proposed is therefore in order.
